Thursday, January 28, 2010

Obama takes an 'almost unprecedented' swipe at the SCOTUS

In his first State of the Union address, President Obama delivered a rare scolding to members of the Supreme Court, seated right in front of him.  Georgetown Law Professor Randy Barnett believes the President was out of line (H/T

In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds Congressmen? To call upon the Congress to countermand (somehow) by statute a constitutional decision, indeed a decision applying the First Amendment? What can this possibly accomplish besides alienating Justice Kennedy who wrote the opinion being attacked. Contrary to what we heard during the last administration, the Court may certainly be the object of presidential criticism without posing any threat to its independence. But this was a truly shocking lack of decorum and disrespect towards the Supreme Court for which an apology is in order. A new tone indeed.

The Blog of Legal Times researched Professor Barnett's opening question and concluded:

President Barack Obama's pointed criticism of the Supreme Court in tonight's State of the Union address, which we reported on here and here was beyond unusual; it was almost unprecedented. The third branch rarely even merits a mention in the State of the Union speeches, according to a search we've made going back to Woodrow Wilson's speech in 1913 in this University of California Santa Barbara database. (Thanks to editor David Brown for the research.)

Presidents have mentioned the Supreme Court by name only nine times since that Wilson speech nearly a century ago, according to the search, and it would be hard to categorize many of those nine as criticisms.
When Representative Joe Wilson (R-SC) shouted "You lie!" during the President's health care address in September, he had the good sense to call the White House and issue a statement of regret immediately.  The President should apologize to our Supreme Court justices, but doing so would require introspection and humility, qualities that have not been evident heretofore.

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